OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.,
PETITIONERS V. COMMONWEALTH OF MASSACHUSETTS
COMMONWEALTH OF MASSACHUSETTS, CROSS-PETITIONER V. OTIS R. BOWEN,
SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.
No. 87-712, 87-929
In the Supreme Court of the United States
October Term, 1987
On Writs of Certiorari to the United States Court of Appeals for
the First Circuit
Reply Brief for the Petitioners/Cross-Respondents
1. Respondent brought this action in the district court in an
effort to establish its right to $11.3 million in additional Medicaid
reimbursement for the years 1978-1982. /1/ The first question
presented is whether, in so doing, respondent sought a money judgment
that the district court was not empowered to render. We showed in our
opening brief (Pet. Br. 13-34) that the district court cannot enter a
judgment requiring the federal government to pay money in the absence
of a waiver of sovereign immunity, and that the only waiver that might
apply to this case in the district court is Section 10(a) of the
Administrative Procedure Act (APA), 5 U.S.C. (Supp. IV) 702, which
permits only "(a)n action . . . seeking relief other than money
damages." /2/ We also showed (Pet. Br. 34-35) that Section 10(c) of
the APA, 5 U.S.C. 704, would preclude this action even if the "money
damages" exclusion in Section 702 did not apply, because respondent
has a Tucker Act (28 U.S.C. 1491) remedy that is, in the words of
Section 704, an "other adequate remedy in a court."
a.(i) Respondent's principal argument is that, because it sought
judicial review of an agency decision, respondent somehow did not seek
"money damages" within the meaning of the APA (Resp. Br. 4, 21-22, 24,
32-34, 43-47, 62). This argument rests on a false dichotomy.
"Judicial review" is a means by which an aggrieved party seeks to
force the government to do something -- to pay money, to conduct
itself in a certain way, or to do both. /3/ See generally Hewitt v.
Helms, No. 85-1630 (June 19, 1987), slip op. 5. The APA's exclusion
of "money damages" focuses not on the means but on the end the party
seeks to achieve: sovereign immunity is waived if "money damages" are
not sought; if money damages are sought then the party seeking them
must look elsewhere for a waiver of sovereign immunity. The mere fact
that the federal government's obligation to pay money can be made
clear by a "reversal" of its decision that it is not obligated to pay
does not convert the lawsuit into something other than an action for
money. /4/ If it did, then the exclusion of "money damages" would be
meaningless, and all complaints seeking the payment of money could be
phrased so as to seek "judicial review" and "reversal" of the refusal
to pay. Cf. Pet. Br. 21-23. /5/
A related argument contends that respondent's demand for payment of
money somehow does not seek "money damages" because any actual payment
by the federal government would take the form of an upward adjustment
to respondent's future Medicaid grants (just as the recoupment of the
amounts disallowed by the Grant Appeals Board took the form of a
downward adjustment to a grant for a period long after the periods in
which the disallowed amounts were paid). Amici suggest that this
upward adjustment is "like a set-off" (Ala. Br. 25; see also N.Y. Br.
11 ("merely . . . a bookkeeping transaction")). That argument,
however, is backwards. When the federal government invokes the
process of the courts against someone who allegedly owes it money, and
the alleged debtor asserts a right of setoff, then arguably no
separate waiver of sovereign immunity is needed. See Bull v. United
States, 295 U.S. 247, 261-262 (1935). But see United States v. Shaw,
309 U.S. 495, 503 (1940). This is not, however, a case instituted by
the federal government to recover money from respondent. The federal
government has already recouped the disputed money administratively.
Rather, it is a case instituted by respondent to augment the amount of
money that will be paid by the federal government to it. /6/
(ii) The complaint in this case clearly seeks additional dollars
from the federal government. Respondent and amici endeavor in several
ways, however, to demonstrate that an award of such additional dollars
under the Medicaid program is not "money damages" within the meaning
of the APA.
The proper question to ask, of course, is what Congress meant by
the term "money damages" in this statute. Thus, it is not sufficient
to show that "damages" is sometimes used to distinguish one kind of
money judgment from another. For example, in Burlington School
Committee v. Massachusetts Department of Education, 471 U.S. 359
(1985), the Court held that a statute authorizing the reviewing court
to "grant such relief as the court determines is appropriate" (20
U.S.C. 1415(e)(2)) was broad enough to permit a court to order
reimbursement of certain expenditures. In distinguishing such
reimbursement from "damages" (471 U.S. at 370-371), the Court was
interpreting a statute that did not even use the word "damages," and
the decision hardly sheds any light on what that word means in a
different statute (the APA), in which it was used.
Likewise, it is not sufficient to postulate, without supporting
legislative history, a questionable "common law" meaning of the word
"damages" that must be what Congress had in mind, no matter what the
contrary indications in the legislative history (see Maryland
Department of Human Resources v. Department of Health & Human
Services, 763 F.2d 1441 (D.C. Cir. 1985) (MDHR v. HHS); Ala. Br.
25-26; CSG Br. 9; N.Y. Br. 11-13, 17; but see Resp. Br. 68 n.14).
Such an argument would have force if "money damages" were a term
invariably used with precision to refer only to some well-defined
subcategory of money judgments, so that any other usage by Congress
would be a misuse of the term. But, of course, that is not the case:
"money damages" is a term regularly used, in Tucker Act jurisprudence
and elsewhere, to mean all kinds of money judgments, including
judgments requiring the payment of money previously owed but unpaid.
See Pet. Br. 18-20 & n.16; Edelman v. Jordan, 415 U.S. 651, 668
(1974) (referring to an award of welfare benefits alleged to have been
illegally withheld as "indistinguishable . . . from an award of
damages against the State"); N.Y. Br. 12.
It is therefore necessary to look to the legislative history to
discern Congress's meaning. Our opening brief showed that by
excluding "money damages" from the APA's waiver of sovereign immunity,
Congress meant to exclude all forms of monetary relief (Pet. Br.
24-34). Respondent and amici have produced no convincing contrary
evidence.
Virtually the only reference to "damages" in the legislative
history that respondent and amici cite is a passage from the
memorandum on sovereign immunity that Professor Cramton prepared on
behalf of the Administrative Conference. The passage is quoted in its
entirety at N.Y. Br. 17. Although the State of New York and other
amici (Ala. Br. 26 & nn.36 & 37) choose to emphasize only the
sentences in this passage that refer to "compensat(ion) for harms
done" and "money damages in tort and contract actions," neither
sentence purports to say that this is all that is meant by the term
"money damages" in the proposed statute. Rather, in the very same
passage Professor Cramton wrote that "the language of our proposal,
which is applicable in terms only to actions 'seeking relief other
than money damages,' indicates that sovereign immunity remains as a
defense to actions seeking monetary relief." Sovereign Immunity:
Hearing on S. 3568 Before the subcomm. on Admin. Practice and
Procedure of the Senate Comm. on the Judiciary, 91st Cong., 2d Sess.
139 (1970) (hereinafter 1970 Hearing). The passage as a whole
confirms, rather than contradicts, the explicit statement earlier in
the same memorandum that "(a)ll forms of monetary relief . . . are
excluded from the recommendation" (id. at 118 (emphasis added)).
In addition, respondent and amici (Resp. Br. 56-57; Ala. Br. 11;
N.Y. Br. 10, 15; CSG Br. 10-11) rely on the reference to federal
grant-in-aid programs in the committee reports accompanying the 1976
amendments to the APA (S. Rep. 94-996, 94th Cong., 2d Sess. 8; H.R.
Rep. 94-1656, 94th Cong., 2d Sess. 9). /7/ But those references do
not support an exception to the rule, stated throughout the rest of
the legislative history, that the APA does not waive sovereign
immunity for an action seeking monetary relief. Clearly, it is
possible to challenge governmental administration of grant-in-aid
programs on grounds that do not give rise to monetary relief. /8/ It
simply does not follow therefore that one must either adjust the
definition of "money damages" in order to give meaning to these
references in the legislative history, or create a limited exception
for grant-in-aid programs to the otherwise general prohibition on
awards of monetary relief under the APA. The reference to
grant-in-aid programs, after all, comes from the same Cramton
memorandum discussed above (see 1970 Hearing 121), and "Dean Cramton's
memorandum, and the congressional reports based on it, should not be
cited as implying propositions that they clearly reject."
Massachusetts v. Departmental Grant Appeals Bd., 815 F.2d 778, 783 n.3
(1s Cir. 1987). /9/
(iii) Respondent and amici make several other arguments in support
of permitting respondent to seek a monetary recovery in district
court, but these remaining arguments are tied barely, if at all, to
the text and legislative history of the APA's exclusion of "money
damages." For example, the briefs are replete with arguments to the
effect that the Medicaid program has special attributes that
assertedly make district court review more appropriate than Claims
Court review (Resp. Br. 9 n.3, 26-28, 81-84, 91-93; Ala. Br. 6-8,
19-20; Calif. Br. 1-13; CSG Br. 21 n.13; Grimesy Br. 8-36; N.Y.
Br. 3, 7-9). But whether or not Congress should have specified a
procedure for judicial review of Medicaid disallowance decisions in
district court, the fact is that it did not. /10/ The task before the
Court is to determine whether such review may be reconciled with the
framework established by other statutes that provide generally for
actions against the United States. And the two relevant statutes --
the APA and the Tucker Act -- look to the nature of the relief sought,
not to the subject matter of the lawsuit, in order to allocate
jurisdication between the district courts and the Claims Court.
A theme that nevertheless runs throughout several briefs is the
assertion that the Claims Court is a "specialized" tribunal whose
jurisdiction depends on the subject matter of the lawsuit -- that it
is a forum for the resolution of government contracts disputes,
civilian and military pay cases, and little else. /11/ But no such
limitation can even remotely be found in the words of the Tucker Act
(see Pet. Br. 3-4). It is certainly true that "(n)ot every claim
invoking the Constitution, a federal statute, or a regulation is
cognizable under the Tucker Act" (United States v. Mitchell, 463 U.S.
at 216). But the limitations have to do with the form of relief
sought and the content of the relevant statute. There is not general
principle excluding from the ken of the Tucker Act grant-in-aid
disputes, or Medicaid disputes, or disputes about "important social
policies and programs" (N.Y. Br. 3; cf. Resp. Br. 39-42), or disputes
about any other subject on which Congress has enacted a statute that
"can fairly be interpreted as mandating compensation by the Federal
Government" (Mitchell, 463 U.S. at 217 (citations and internal
quotation marks omitted)). /12/ And although the staple of the Claims
Court's work admittedly has been government contracts cases, pay
cases, and a few other recurrent categories, Tucker Act courts have
adjudicated a wide variety of other controversies. /13/
Thus, it is not the least unnatural to believe that Congress, in
enacting the 1976 amendments to the APA, did what the legislative
history indicates it intended to do: open the district courts up to
actions not seeking monetary relief, but leave nontort money cases,
whatever their subject matter, governed by the Tucker Act (see Pet.
Br. 31-32). Although the legislative history cites contract cases
most frequently as an example of Tucker Act cases left unaffected by
the new Section 702, this natural emphasis on the most familiar kind
of Tucker Act case hardly means (see Resp. Br. 64-65, 102; Ala. Br.
26 n.37; N.Y. Br. 13 n.9; CSG Br. 16) that those are the only cases
that the APA's waiver of sovereign immunity does not reach.
b. As we argued in our opening brief (Pet. Br. 34-35), even if
respondent's action is not a request for "money damages" within the
meaning of the APA, it would be inappropriate -- at least insofar as
respondent seeks a judgment that would directly enable it to obtain
$11.3 million in Medicaid reimbursement for years past -- to allow
respondent to sue under the APA, because respondent could obtain the
same judment from the Claims Court (assuming the correctness of its
position on the merits). /14/ Thus, this is not a case involving
"final agency action for which there is no other adequate remedy in a
court" (5 U.S.C. 704).
Respondent and amici respond to this argument in two ways. First,
they contend that Section 704 does not really mean what it says, that
"nonstatutory" APA review is available only when there is no other
adequate remedy in a court (Resp. Br. 71-72; N.Y. Br. 6-7, 17 n.11).
Second, they surprisingly contend that the Claims Court would not have
jurisdiction, so that the Tucker Act remedy is inadequate because it
is nonexistent (Resp. Br. 29-30, 97-99; cf. Ala. Br. 24 n.34).
However, notwithstanding dicta in Massachusetts v. Departmental
Grant Appeals Bd., 815 F.2d at 784, there is no basis for reading
Section 704 as a mere requirement of exhaustion of administrative
remedies and ripeness, rather than what it purports to be: a statute
precluding nonstatutory review under the APA when there exists another
adequate remedy in a court. See, e.g., Council of the Blind v. Regan,
709 F.2d 1521, 1531 (D.C. Cir. 1983) (en banc) (reading Section 704
literally). The legislative history of this provision is quite
scanty. See S. Doc. 248, 79th Cong., 2d Sess. 8, 37-38, 213, 276-277
(1946) (reprinting committee reports). It certainly supports the
proposition that one purpose of Section 704 was to codify requirements
of exhaustion and ripeness. But nowhere does it say, or even
intimate, that this was its only purpose. Moreover, there can be no
claim that the literal reading is nonsensical or inconsistent with any
other provision of the APA. Congress could quite reasonably conclude
that nonstatutory review should be confined to cases of true necessity
-- where there is "no other adequate remedy in a court" -- since a
broader form of nonstatutory review might render redundant or
otherwise interfere with carefully limited provisions for statutory
review.
The contention that no Tucker Act remedy exists in this case is
also without foundation. Far be it from us to "ignore() the rule that
in 'determining the general scope of the Tucker Act, this Court has
not lightly inferred the United States' consent to suit'" (Resp. Br.
97-98 (quoting Mitchell, 463 U.S. at 218)). But "there is simply no
question that the Tucker Act provides the United States' consent to
suit for claims founded upon statutes or regulations that create
substantive rights to money damages" (Mitchell, 463 U.S. at 218).
/15/ And respondent's statutory substantive right to repayment for
valid Medicaid expenditures could not be clearer: "the Secretary . .
. shall pay" the money under 42 U.S.C. 1396b(a) when the State has a
valid claim for reimbursement. /16/ If the Medicaid Act did not
mandate the payment of money by the federal government, it is hard to
see how respondent would have any legally enforceable rights of the
sort it asserts in this lawsuit.
2. If we have succeeded in showing that the interplay of the APA
and the Tucker Act requires that respondent's request for monetary
relief be adjudicated in the Claims Court rather than the district
court, then the Court must decide the second question presented:
whether that statutory division of jurisdiction -- actions seeking
money in the Claims Court, actions seeking relief other than money in
the district court -- allows a single lawsuit seeking both monetary
relief and prospective relief to be split into two actions, with the
district court taking jurisdiction over the "prospective" part of the
suit and the Claims Court over the "retrospective" part. Such claim
splitting, by allowing the district court to resolve all common legal
issues in the course of considering the plaintiff's request for
declaratory or injunctive relief, which resolution then becomes
binding on the Claims Court by operation of collateral estoppel, /17/
effectively nullifies the congressional objective of centralizing the
adjudication of claims for money damages against the United States in
a single forum. In addition, claim splitting will inevitably give
rise to confusion, delay, intercircuit conflicts, and forum shopping.
We showed in our opening brief that this simply could not have been
Congress's intent (Pet. Br. 38-43), that 5 U.S.C. 704 precludes such
an assertion of district court jurisdiction because (at least in the
circumstances of this case) respondent's Tucker Act remedy is
"adequate" (Pet. Br. 43-44), and that 5 U.S.C. 702(2) precludes such
an assertion of district court jurisdiction because the Tucker Act
"impliedly forbids" the nonmonetary relief sought (Pet. Br. 44-46).
Respondent has done much to confirm that the only relief needed or
appropriate on the facts of this (or any similar) case is available
from the Claims Court. Respondent recognizes that the district court
entered no injunction (Resp. Br. 19). Nor did the court of appeals do
so. Therefore, what would restrain petitioners from taking action
inconsistent with the decisions below is not any threat of contempt
for disobeying an injunctive order, but instead the stare decisis
effect of the reasoning of those decisions. Respondent also
acknowledges that it was satisfied with the relief it obtained below,
and that nothing else was necessary to accomplish the purposes of this
lawsuit (id. at 21-22, 32-33, 35, 68 & n.14). What respondent fails
to acknowledge, however, is that the very same relief is and was
available from the Claims Court in the form of a money judgment and/or
remand, and the accompanying statement of law that would bind
petitioners in their future dealings with respondent. Any decision by
the Claims Court would have no less and no more of a restraining
effect than the judgments entered by the courts below. See King v.
United States, 390 F.2d 894, 905 (Ct. Cl. 1968) ("Any judgment of this
court will inevitably have a restraining effect upon Government
operations. This is true of money judgments . . . . A judgment
awarding money to a particular plaintiff can be authoritative
information to officials that their conduct was unlawful and that,
unless their position is altered, similar judgments may be rendered in
the future."), rev'd on other grounds, 395 U.S. 1 (1969).
In these circumstances, it is simply wrong to describe the relief
available in the Claims Court as anything short of "complete" (CSG Br.
20). It is equally wrong to maintain that "(t)he Tucker Act remedy .
. . is wholly inadequate because the Claims Court cannot provide the
declaratory and injunctive relief available in the district court"
(Ala. Br. 12; see Resp. Br. 72). Respondent and amici have confused
the question whether the Claims Court can provide the same relief with
the question posed by the APA, which is whether the Claims Court can
afford an "adequate remedy" (5 U.S.C. 704 (emphasis added)). See
Council of the Blind v. Regan, 709 F.2d at 1532 (distinguishing
proposition that relief plaintiffs sought under the APA was "more
effective" from the Section 704 criterion that non-APA relief be
"inadequate").
Consequently, the efforts by respondent and amici to show that the
Claims Court does not have the same equitable powers as the district
court (Resp. Br. 72-76; Ala. Br. 12-15; CSG Br. 11-14) -- although
correct in some respects -- are quite beside the point. /18/
Congress's deliberate decision not to give the Claims Court full
equitable powers should be treated as a reason not to afford
injunctive and declaratory relief at all, not as something that, ispo
facto, renders the Claims Court an inadequate forum in which to
litigate any dispute about money that also has implications for the
future.
We said in our opening brief that, "(a)lthough the matter is not
entirely free from doubt, we believe that plaintiffs also may waive
all monetary recovery -- permanently forgoing any Tucker Act claim
arising out of prejudgment events -- and thereby litigate their cases
for nonmonetary relief in the district court and regional court of
appeals" (Pet. Br. 15 n.11). The "doubt" to which we referred arises
because it is unclear whether the adequacy of other remedies should be
determined before or after the waiver. Before the waiver, the
plaintiff has a Tucker Act remedy in the Claims Court, where he could
secure any monetary recovery coupled with a determination of the law
applicable to his situation. After the waiver, however, it is clear
that the only available remedy is in district court.
Perhaps we were only generous in suggesting that that doubt should
be resolved in favor of viewing the plaintiff's situation after the
waiver rather than before, but for two reaons we continue to believe
that this is the better view. First, a plaintiff who waives all
monetary recovery in order to have access to the declaratory and
injunctive powers of the district courts demonstrates in a convincing
fashion that he has a genuine need for the exercise of those powers.
Second, when a court grants injunctive or declaratory relief that goes
solely to future conduct of the parties, and cannot be used to impose
monetary liability of the federal government for past conduct, the
principal defect associated with claim splitting -- that it nullifies
Congress's purpose to centralize money claims against the United
States (other than those for which there exists a specific waiver of
sovereign immunity) -- is not implicated, and there is no particular
reason to remit the plaintiff to the forum that was set up to give the
plaintiff relief that he does not need or want.
But whatever the merits of our supposition that plaintiffs in other
situations can invoke the jurisdiction of the district court by
waiving their claims to accrued money damages, this issue is not
presented by the case before the Court. Respondent has not waived its
accrued money claim and has done nothing else to demonstrate a genuine
need for any forward-looking relief beyond the binding statement of
the law that the Claims Court can provide in the course of
adjudicating the claim for past-due money. In these circumstances, it
would be quite incorrect and would undermine congressional intent to
treat respondent's ability to proceed in the Claims Court as anything
less than an "adequate remedy in a court" (5 U.S.C. 704) and to allow
preemption of the Claims Court in the manner accomplished by the court
of appeals in this case.
For the foregoing reasons and those given in our opening brief, the
judgments of the court of appeals should be affirmed in part and
reversed in part, and the cases should be remanded with directions to
vacate the judgments of the district court in their entirety and to
transfer the cases to the Claims Court pursuant to 28 U.S.C. 1631.
/19/
Respectfully submitted.
CHARLES FRIED
Solicitor General
APRIL 1988
/1/ In this reply brief, we use "respondent" to refer to
respondent/cross-petitioner the Commonwealth of Massachusetts; "Resp.
Br." to refer to respondent's brief; "petitioners" or "the Secretary"
to refer to petitioners/cross-respondents the Secretary of Health and
Human Services, et al.; "Pet. Br." to refer to our opening brief;
"Ala. Br." to refer to the brief for the States of Alabama, et al., as
amici curiae; "Calif. Br." to refer to the brief for the State of
California as amicus curiae; "CSG Br." to refer to the brief for the
Council of State Governments, et al., as amici curiae; "Grimesy Br."
to refer to the brief for Victoria Grimesy, et al., as amici curiae;
and "N.Y. Br." to refer to the brief for the State of New York as
amicus curiae.
/2/ Some amici dispute even the threshold proposition that a waiver
of sovereign immunity is necessary (Ala. Br. 26-28). They contend
that there exists an exception to the general principle of sovereign
immunity, not grounded in any statute, whereby an action seeking to
force the federal government to pay money is permitted whenever the
money would come from funds appropriated to a specific program. This
Court's cases, however, support no such expansive exception. Such
cases as Miguel v. McCarl, 291 U.S. 442 (1934), and Roberts v. United
States, 176 U.S. 221 (1900), stand only for the proposition that
courts can issue orders in the nature of mandamus to compel
performance of a clear or ministerial duty to pay money. See Cramton,
Nonstatutory Review of Federal Administrative Action: The Need for
Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction,
and Parties Defendant, 68 Mich. L. Rev. 387, 403-404 (1970). It was
the "'ministerial'" nature of the duty to pay (rather than to impound)
appropriated funds that allowed this Court to adjudicate Train v. City
of New York, 420 U.S. 35 (1975), without a waiver of sovereign
immunity (see 420 U.S. at 41 n.7). Neither Train v. City of New York
nor any other decision of this Court can even remotely be read to
stand for the proposition that intricate questions of statutory
construction concerning the precise amount of federal funds to be paid
to a particular claimant can be adjudicated without a waiver of
sovereign immunity, simply because a general appropriation covers
those funds. To the contrary, it remains "axiomatic that the United
States may not be sued without its consent" (United States v.
Mitchell, 463 U.S. 206, 212 (1983)), and a mere appropriation of funds
to be used for a particular program hardly represents consent of the
sovereign to all lawsuits involving those funds. The suggestion to
the contrary in Springdale Convalescent Center v. Mathews, 545 F.2d
943, 950 (5th Cir. 1977), is in error.
/3/ Thus, even though the Tucker Act applies only to cases in which
the plaintiff seeks a money judgment (see Pet. Br. 18-20 & n.16), such
an adjudication is often referred to as "judicial review." See, e.g.,
Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983)
("judicial review" of decision of Army Board for the Correction of
Military Records); Foote Mineral Co. v. United States, 654 F.2d 81
(Ct. Cl. 1981) ("judicial review" of Interior Board of Land Appeals
decision denying refund of mineral royalties); Julius Goldman's Egg
City v. United States, 556 F.2d 1096 (Ct. Cl. 1977) ("judicial review"
of determination by Secretary of Agriculture of fair market value of
poultry for whose destruction he was statutorily obligated to
compensate plaintiff); Brenner, Judicial Review by Money Judgment in
the Court of Crimes, 21 Fed. B.J. 179 (1961); see also Chappell v.
Wallace, 462 U.S. 296, 303 (1983) ("judicial review" of decision of
Board for Correction of Naval Records).
/4/ For example, if the district court's judgments in this case had
not been appealed, and petitioners had simply refused to pay the $11.3
million at issue for the 1978-1982 period, there can be no doubt that
the district court would have regarded that refusal as contempt of
court -- even though the court never entered an order that said, in so
many words, "pay the Commonwealth of Massachusetts" a specified sum of
money. Respondent itself states that jurisdiction should not be based
on "the bare possibility that the Secretary will contemn the judgment"
(Resp. Br. 38), and that, of course, is exactly the point: the
judgments entered by the district court in this case have precisely
the same effect, unless the Secretary disobeys them, as money
judgments.
/5/ The exclusion would likewise be rendered meaningless if the
Court were to intepret the complaint in this case as "entirely
prospective" (CSG Br. 7) on the ground that the redress it seeks
(payment of money in the future), as opposed to the conduct said to
give rise to a right to that redress (nonpayment of money in the
past), has not yet occurred.
/6/ Respondent and several amici assume that an action brought
before the administrative recoupment took place would not be an action
for "money damages" and that it therefore could proceed in district
court. On the basis of that assumption, they then assert that it is
anomalous to have jurisdiction turn on whether the lawsuit is
instituted before or after the recoupment. Resp. Br. 65-66; Ala. Br.
9, 22-23; Calif. Br. 6; CSG Br. 8. If any such anomaly existed, it
would be one of Congress's making and one for Congress, not the
courts, to correct -- if some correction were deemed appropriate. In
fact, however, we do not think any distinction need be drawn between
pre- and post-recoupment cases. In a pre-recoupment case as in a
post-recoupment case, what is at issue is the size of a future payment
to the State by the federal government. In both types of cases the
plaintiff seeks, based on the legality of past conduct of the parties
rather than future conduct, to require the federal government to pay
more money than it would otherwise pay. Both kinds of actions
therefore seek monetary relief that is excluded by the APA but
contemplated by the Tucker Act.
/7/ Amici Alabama, et al., misleadingly state that these references
followed a decision by this Court holding that federal administration
of grant-in-aid programs "could not be challenged under the Tucker
Act" (Ala. Br. 11 (citing Richardson v. Morris, 409 U.S. 464 (1973));
cf. Resp. Br. 57 n.11). The cited decision said nothing of the kind.
The plaintiff's had filed suit seeking equitable relief, and the
district court predicated its jurisdiction on the Tucker Act. This
Court wrote (409 U.S. at 465 (footnoted omitted)):
The Tucker Act plainly gives district courts jurisdiction
over claims against the United States for money damages of less
than $10,000 that are "founded . . . upon the Constitution." But
the Act has long been construed as authorizing only actions for
moeny judgments and not suits for equitable relief against the
United States.
Consistent with the position we assert in this case, the Court's
entire focus was on the nature of the relief sought, not the subject
matter of the lawsuit.
/8/ For example, an agency can simply fail to act on an application
for federal funds, and a suit can be brought to compel the agency to
act -- one way or the other -- on the application. In that situation,
the court, if it agreed with the plaintiff, would compel the agency to
act on the applications for funds but would not compel it to pay
funds. Cf. Sarasota v. EPA, 799 F.2d 674 (11th Cir. 1986).
Alternatively, those who deal with a particular federal grantee may
wish to see the grantee cut off from federal funding unless it
complies with certain environmental, social, or economic conditions.
A lawsuit claiming that the federal government has a legal obligation
to enforce such conditions or cut off funding would not seek the
payment of money.
/9/ In addition to the Cramton memorandum, other portions of the
legislative history discussed in our opening brief show that Congress
intended the phrase "money damages" to mean all monetary relief and
that those who sought monetary relief would be limited to such
remedies as might be available under specific statutes or under the
Tucker Act. Amicus the State of New York responds to one passage we
quote -- a statement by the Chairman of the Administrative Law Section
of the American Bar Association (Pet. Br. 30) -- by pointing out that
the statement was originally drafted in support of a statutory
proposal containing different language (N.Y. Br. 16). That is true,
but the submission of this same statement in support of the
Administrative Conference proposal (which eventually became 5 U.S.C.
702) demonstrates that the exclusion of "money damages" was not meant
or understood to be narrower than the exclusion of "monetary relief or
specific relief in lieu thereof" in the ABA proposal. To the
contrary, the witness understood the language of the Administrative
Conference proposal to be "precise statutory language" that would
accomplish the same objectives as the ABA proposal (1970 Hearing 56).
/10/ As we noted in our opening brief (Pet. Br. 6 n.4), in the
early years under the Medicaid program the government took the
position that the absence of a specfic review provision, coupled with
certain indications in the legislative history of 42 U.S.C. 1316(d),
meant that judicial review of Medicaid disallowance determinations was
precluded altogether. That argument was rejected in County of Alameda
v. Weinberger, 520 F.2d 344, 347-349 (9th Cir. 1975). The government
did not at that time advance, and the court did not consider, the
additional argument that there was no waiver of sovereign immunity
that would permit a district court as opposed to the Court of Claims
(now the Claims Court) to order monetary redress for a disallowance
decision. Given the lack of attention to this issue, there is no
reason to believe that Congress, when it legislated generally on the
subject of waiver of sovereign immunity in 1976, necessarily ratified
all prior decisions allowing monetary actions to proceed in district
courts. Even less persuasive is the argument of respondent (Resp. Br.
90) that the Federal Courts Improvement Act of 1982 (FCIA), Pub. L.
No. 97-164, 96 Stat. 25, somehow ratified decisions (see Resp. Br.
52-53) that -- without construing either the Tucker Act of the "money
damages" exclusion in the APA -- had found district court jurisdiction
to review grant disallowance disputes. The FCIA did not substantively
amend any of the statutory provisions on which we rely for the
propositon that a plaintiff seeking money from the federal government
must (in the absence of a specific waiver of sovereign immunity)
proceed under the Tucker Act rather than the APA, and inferences from
what is not said in the legislative history of the FCIA are quite
unelightening.
/11/ Respondent and several amici also disparage the Claims Court
as a mere Article I tribunal, and they suggest in various ways that it
somehow lacks the dignity to resolve important disputes to which a
sovereign State is a party. The only issues before the Court,
however, are issues of statutory interpretation. This Court is not
asked to decide what jurisdiction the Claims Court and district courts
should be assigned, but what jurisdiction they have been assigned, and
observations about the source of constitutional authority for those
courts do not advance the analysis. Nor does the sovereignty of the
States give them any right to sue the United States other than the
rights conferred by statutes consenting to suit. See Block v. North
Dakota, 461 U.S. 273, 280 (1983); Hawaii v. Gordon, 373 U.S. 57
(1963); Minnesota v. United States, 305 U.S. 382 (1939). In any
event, there is no question in this case of depriving anyone of an
Article III forum. Claims Court decisions can be appealed under 28
U.S.C. 1295(a)(3) to the United States Court of Appeals for the
Federal Circuit, which is an Article III tribunal (see S. Rep. 97-275,
97th Cong., 2d Sess. 2 (1982)).
/12/ Indeed, this Court wrote in Mitchell that the Tucker Act
"makes absolutely no distinction between claims founded upon contracts
and claims founded upon other specified sources of law" (463 U.S. at
216).
/13/ See, e.g., cases cited in note 3, supra; Chula Vista City
Sch. Dist. v. Bennett, 824 F.2d 1573 (Fed. Cir. 1987) (federal Impact
Aid to local educational agencies), cert. denied, No. 87-909 (Jan. 25,
1988); Spokane Valley Gen. Hosp. v. United States, 688 F.2d 771 (Ct.
Cl. 1982) (Medicare reimbursement); Whitecliff, Inc. v. United
States, 536 F.2d 347 (Ct. Cl. 1976) (Medicare reimbursement), cert.
denied, 430 U.S. 969 (1977); New York Airways, Inc. v. United States,
369 F.2d 743 (Ct. Cl. 1966) (subsidies for transportation of mail
under order of Civil Aeronautics Board); see also Bakersfield City
Sch. Dist. v. Boyer, 610 F.2d 621, 627-628 (9th Cir. 1979). The
opinion of Justice Harlan in Glidden Co. v. Zdanok, 370 U.S. 530
(1962), observed that "(t)he cases heard by the Court (of Claims) have
been as intricate and far-ranging as any coming within the
federal-question jurisdiction . . . of the District Courts" (370 U.S.
at 556-557; see also id. at 573-574).
/14/ For purposes of jurisdicational arguments, we of course assume
that respondent has a meritorious claim. It is by no means true,
however, that "(t)he Secretary no longer disputes that the Medicaid
statute covered the services the Commonwealth provided to mentally
retarded citizens" (CSG Br. 6). If the court of appeals is held by
this Court to have jurisdiction, then we will of course be bound by
its determinations. But we believe that the court lacked
jurisdiction, and if this Court agrees then we intend to litigate the
merits vigorously in the Claims Court, which does have jurisdiction.
/15/ We showed in our opening brief (Pet. Br. 18-20) that whatever
the term "money damages" means under the APA, this term clearly
encompasses all claims for monetary relief when used to describe the
prerequisite to Tucker Act jurisdiction. See United States v. Jones,
131 U.S. 1 (1882); MDHR v. HHS, 763 F.2d at 1447; Pauley Petroleum,
Inc. v. United States, 591 F.2d 1308, 1315-1316 (Ct. Cl. 1979).
Respondent ignores this portion of our brief in its repeated
assertions (Resp. Br. 29, 60-61, 69-70, 99) that we have argued that
term has the same meaning under both Acts and that therefore a narrow
meaning of "money damages" in APA jurisprudence would necessarily
require an equally narrow meaning of the term as used in Tucker Act
jurisprudence.
United States v. Mottaz, 476 U.S. 834 (1986), does not redefine the
term "money damages" in any way that makes a Tucker Act remedy
unavailable in this case. The facts of Mottaz were sui generis: the
plaintiff claimed title to a disputed parcel of land, and she sought
the two-step remedy of recognition of her title followed by a required
purchase of the land by the government, a remedy "appropriate" on the
particular facts of that case because of the location of the land
within a national forest (476 U.S. at 851). The Court therefore drew
a distinction between "damages for the Government's past acts, the
essence of a Tucker Act claim for monetary relief," and the unusual
forward-looking remedy sought by the Mottaz plaintiff (ibid.). The
Court said nothing to indicate that it was adopting a general
redefinition of the word "damages," which in prior Tucker Act cases
has been used to encompass all forms of monetary relief for the
federal government's past acts.
/16/ The determination whether a statute can fairly be read as
mandating compensation is not, as the District of Columbia Circuit
recently suggested, the same as the question whether Congress intended
to create an "implied cause of action" in that statute. See National
Ass'n of Counties v. Baker, No. 87-5287 (D.C. Cir. Mar. 11, 1988),
slip op. 10; see also MDHR v. HHS, 763 F.2d at 1450-1451. "If the
source of the substantive right can be fairly read as mandating
compensation by the Government, it is needless for Congress to add
expressly in that statute that suit may be maintained in this court
(or elsewhere) to obtain such monetary compensation. The Tucker Act .
. . perform(s) that function of giving Congressional consent to
jurisdiction in this court over such pecuniary claims. Classic
instances of legislation directing compensation, and therefore
grounding suit in this court, are the statutes providing for military
and civilian pay and allowances (which have not, of course, themselves
mentioned suit or the right to sue)." Mitchell v. United States, 664
F.2d 265, 268 (Ct. Cl. 1981) (footnote omitted), aff'd, 463 U.S. 206
(1983); see id. at 281 (Nichols J., concurring and dissenting) ("The
Supreme Court obviously never intended to withdraw jurisdiction over a
class of case where legislation other than the Tucker Act can be said
. . . to 'mandate compensation' in money. The references . . . to
'money damages' in connection with rights created outside the Tucker
Act . . . (are) a shorthand way of saying the other legislation must
mandate the payment of money in terms readily expressible as money
damages in case the mandated duty is not performed."). As our
petition for a writ of certiorari in Mitchell said (at 14): "(T)he
Court of Claims . . . reasoned . . . that the necessary consent to
suit may be inferred from a statute that directs payment of a
particular sum of money to an individual. With this we have no
quarrel, for a statute that creates a right to payment of money can
fairly be interpreted as mandating the availability of a damages
remedy; without the damages remedy the substantive right would be
empty. See, e.g., United States v. Hvoslef, 237 U.S. 1, 10 (1915);
Medbury v. United States, 173 U.S. 492, 497 (1899) . . . ."
/17/ We observed in our opening brief that res judicata principles
usually prohibit a plaintiff from first asserting his equitable claims
in one action and then seeking money in a separate action (Pet. Br. 39
n.33). The District of Columbia Circuit recently agreed that
preclusion of such belated money claims "would appear to be the
expected result under black letter principles." Vietnam Veterans of
America v. Secretary of the Navy, No. 86-5547 (D.C. Cir. Mar. 29,
1988), slip op. 13.
/18/ Although the powers of the Claims Court are indeed limited in
some important ways, they are not as limited as respondent and amici
argue. The court has the power "(i)n any case within its
jurisdiction" to "remand appropriate matters to any administrative or
executive body or official with such direction as it may deem proper
and just" (28 U.S.C. 1491(a)(2)). Respondent and amici correctly note
that this power was not intended to allow the Claims Court to enter
declaratory and injunctive relief, but they are incorrect in asserting
that the power is one that can only be exercised in government
contract cases (Resp. Br. 75; Ala. Br. 14 n.18). The impetus for
this provision was a set of problems that had arisen in government
contract cases (see S. Rep. 92-1066, 92d Cong., 2d Sess. 3 (1972);
H.R. Rep. 93-1023, 92d Cong., 2d Sess. 4 (1972)), but the committee
reports that respondent and amici cite contain no hint that the
congressional intention was to limit use of the remand power to such
cases, despite the plain language allowing remand in any case within
Claims Court (then Court of Claims) jurisdiction. And in fact, the
Court of Claims and Claims Court have frequently used this remand
power in cases other than government contract disputes. See, e.g.,
Rothman v. United States, 219 Ct. Cl. 595, 598 & n.5 (1979) (remand to
Department of Health, Education, and Welfare in action for Medicare
reimbursement); Hoopa Valley Tribe v. United States, 596 F.2d 435,
447 (Ct. Cl. 1979) (dictum) (in action to recover timber royalties
court has power to order remand to Secretary of the Interior);
Gratehouse v. United States, 512 F.2d 1104, 1112 (Ct. Cl. 1975)
(remand to Civil Service Commission in action for reinstatement and
backpay); Long v. United States, 12 Cl. Ct. 174, 176, 177 (1987)
(remand to Air Force Board for the Correction of Military records in
military pay case); Harris v. United States, 8 Cl. Ct. 299, 303
(1985) (same); see also Erika, Inc. v. United States, 634 F.2d 580,
591 (Ct. Cl. 1980) (remand to insurance carrier in Medicare
reimbursement dispute), rev'd on other grounds, 456 U.S. 201 (1982).
Of course, the Claims Court cannot bring a case within its
jurisdiction by the technique of remanding with directions to award
nonmonetary relief that is a prerequisite to monetary relief. United
States v. Testan, 424 U.S. 392, 404 & n.7 (1976). But there is no
opportunity for such bootstrapping in this case; respondent seeks and
is entitled to the payment of money if the services at issue were
covered by the Medicaid statute.
/19/ We note that, whatever the resolution of the jurisdictional
issues before this Court, it would not be appropriate for the Court to
do as respondent suggests and remand "with instructions to reinstate
the judgments of the district court" (Resp. Br. 105; see also CSG Br.
26). Despite agreeing with the district court on the basic legal
question presented by the case, the court of appeals, for reasons
independent of jurisdictional defects, found those judgments infirm in
part (Pet. App. 7a n.2).